https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11362

IMN v Republic (Criminal Appeal E082 of 2024) [2026] KEHC 11362 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11362 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Appeal E082 of 2024 DKN Magare, J July 23, 2026 Between IMN Appellant and Republic Respondent Judgment 1.This appeal arises from the Judgment of the Honourable Hon. W. Kagendo (CM) delivered on 26.07.2021 and sentence given on 19.08.2021 in Nyeri CMCSO No. E016 of 2020. 2.The Appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the diverse dates between 12.10.2020 to 17.10.2020, at [Particulars Withheld], Nyeri central sub-county, within Nyeri County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of AWM, a child aged 12 years who to his knowledge was his daughter. 3.The Appellant was arraigned on 20.11.2020 and he denied the charges. A plea of not guilty was consequently recorded. The court gave directions regarding bond and a hearing date. 4.The trial court found the Appellant guilty and convicted and sentenced him to serve life imprisonment. Aggrieved, the Appellant lodged this appeal challenging both conviction and sentence. The grounds of appeal were as follows:a.The learned magistrate erred in law by applying wrong principles, thereby upholding an unlawful sentence.b.The learned magistrate erred in law and fact in imposing a sentence of life imprisonment without appreciating that the age of the complainant was not proved and penetration was not established as required by law.c.The prosecution case was riddled with glaring contradictions and inconsistencies, which materially undermined the reliability of the evidence tendered.d.The prosecution failed to call crucial and essential witnesses thereby leaving key gaps in its case and violating the principles governing fair trial and sufficiency of evidence.e.The prosecution failed to discharge the burden of proof to the required standard of beyond reasonable doubt.f.The learned magistrate erred by failing to consider, weigh and evaluate the appellant’s defence, contrary to the dictates of section 169 of the Criminal Procedure Code and established judicial practice. 5.The following issues arise from the grounds of appeal:a.The legality and harshness of sentence.b.Whether the prosecution the evidence has contradictions and inconsistencies that rendered the conviction unsafe.c.Whether the state provide its case beyond reasonable case.d.Whether the court failed to consider the defence evidence. Evidence 6.PW1 was the minor and she was taken to voire dire. She was 13 years and in class six. She recalled that sometimes in October, that is 12.10.2020, her father, in her words, “alinishika kwa nguvu.” The father had gone to do casual jobs. At 2.00 pm, she went into the house, and met her father in the table room. They discussed, and exchanged pleasantries. The minor informed the father that the mother had gone to work. He enquired where the brother JJJ was. JJJ was in the kitchen 10m away. 7.She went and checked on JJJ and returned to the house. The appellant told her to go to the bedroom and got hold of the hand. He told the complainant not to share his secret. The appellant was holding a knife. 8.The appellant threatened the complainant not to tell anyone. He led the complainant to the bed and let her lie. He then held a knife and told her to undress. He told her if she dared scream, he would stab her with a knife. He placed the knife on a stool. He removed her tight pair of panties, red pantie, and a light green shirt. He removed a trouser and a pantie. The appellant was wearing a brown trouser and also a black T-shirt. 9.The appellant removed his trousers, and “raped her.” She got injured in her private parts. The appellant defiled her for one hour. He then went outside and told her not to leave the house. He went out and told her to go out. At that time JJJ had gone to visit a neighbour, NYX. She told the mother, who said she was lying. 10.The appellant again had sex with her on 14.10.2020. The mother had gone to work. The appellant was in the shamba in the morning. The appellant removed her skirt, undressed her and defiled her. (The minor was using English in the evidence and saying raped). The appellant was wearing clothes he had worn on 12th. According to her, the appellant did bad manners to her. The appellant had sex with her. He was going to Kieni. The appellant came back the following day on 15.10.2020. When the mother was told she did not believe the complainant. She had not agreed to the sex. On 17.10.2020 she went to church and returned at 1900 hours. The appellant asked where she had been and she indicated she was with friends. The appellant told her that she had gone for prostitution. He asked her to go where she had gone. She did not go. Next day she went to A’s home. 11.PW2 was Paul Nguru from Mathaari Sub-location and an Assistant Chief. He received a report from PC Marete on 30.10.2020 about incest/defilement. He went to Kagwathi Police Post and found two girls there, the complainant and another. He inquired why they ran away from home and was told about the incest with the father. They let the child live with PW4. He invited the appellant to come to his office and when he went there, he was arrested. The minor had reported to the mother who did not assist. 12.On cross examination he stated that he had not known that the complainant had become truant. On further cross examination, he stated that DW2 told her that there were wrangles in the family. 13.PW3 James Ndungu Ndiangui testified that he has known the accused from childhood. He received a call from a village elder, Mr. Kimuma, from the neighbouring village, that a child had escaped to their village. He was led to the home of Zacharia Mathenge. He found the complainant who did not answer but later said that the father had raped her a second and third time and she ran away on the 4th attempt. The parents went there and wanted to take the child back. He called back Mr. Kimuma and told him where the minor was. 14.On cross examination he stated that he was sent by one Kibwe. After they talked to the minor he reported to the police. The child did not know that he was a village elder. His duty was limited to reporting strangers in the village. He denied having a grudge with the appellant. 15.PW4 was AWW, a farmer from Kigwathi. The complainant went with a woman to her home on 20.10.2010. She met the girl at 4.00 am. She was not very sure of time but it was raining heavily. The complainant knocked the door. She was reluctant to let her in but did so after persistence. She gave her food and spoke in the morning. She had visited the witness the previous day. The brother of the accused had also gone to the same house. She called three men and told them of the defilement. 16.When she requested the complainant to go home, she refused completely to go home even when assured that she was to stay with her two sisters. She was left bamboozled that they were leaving their child with her. The girl was refusing to get impregnated by the father who also had defiled another girl. She declined to go and pick the complainant’s clothes. 17.The following day the Nyumba Kumi elders came with the parents. They had lied that the minor insulted them and ran away. The appellant was arrested and she called another to accompany her to the police station. Already the girl had given her version of events. The minor was taken to hospital. She denied that the complainant went for a birthday. 18.On cross examination she said she told the police what she has told the court. She stated that she did not know how the minor was treated. She said she only came into the picture after the child sought refuge in her home. She denied discussing with the minor. The minor brought out previous conviction after the appellant had left. 19.PW5 was Dr. Joyce Mackenzie of Nyeri Central Hospital. She produced PRC and P3, dated 4.11.2021. The witness gave history of a broken hymen and a UTI. 20.PW6 was PC 75237 Corporal Judith Chepngetich from Nyeri Central Gender. She received report that a child was defiled and escaped to PW4’s home. She investigated and asked for a birth certificate. She was 12 years old. She was defiled on 12th and 17th October 2020. She reported that the defilement occurred over lunch hour. There was also a prior incident. She noted that the mother was not cooperative. She did not know anything about money. 21.The court complied with the requirements of Section 211 of the Criminal Procedure Code. The appellant opted to give sworn evidence and call one witness. 22.The appellant testified as DW1. He denied having sex with the minor. He was arrested on 19.10.202 while he was unwell. They had gone to PW4 with Nyumba Kumi asking for her daughter. He had gone earlier to look for her. The complainant left home with a phone and they never saw her again. He would like to know where she took the phone. He said he did not know about defilement. He heard it in remand. He stated that he lived in Nanyuki and came back occasionally. The complainant’s mother went away from 12-17.10.2020. He was left with the two children. He said he had no differences with the complainant. The complainant used to go home with a boyfriend. 23.DW2 was the complainant’s mother. She stated that the appellant did not defile the minor. She stated that she was away from home. She could not say anything more than that. 24.On cross examination she stated that the appellant lives with her and also in Nanyuki. She stated that the minor was 12 years old and in class 6. She used to leave the appellant home with the children. She stated that the complainant never told her of the defilement. She stated that there was no boy who visited her home. The minor could come home late. She stated that when she disappeared, they reported to the village elder and they looked for her among friends. Appellant’s Submissions 25.The appellant filed submissions dated 3.2.2026. He filed 4 further grounds of appeal and appears to have abandoned the original petition. The new grounds are as follows:a.The learned magistrate erred in law and fact by relying solely on the uncorroborated evidence of the complainant without adequate scrutiny.b.The learned magistrate erred in law and fact by failing to consider defence evidence and by failing to give reasons for rejecting it.c.The learned magistrate erred in law and fact by admitting and relying on prejudicial evidence of a prior conviction to determine the appellant’s guilt.d.The learned magistrate erred in law and fact by holding that life imprisonment is a mandatory sentence for the offence of incest under section 20(1) of the Sexual Offences Act, without considering the discretionary nature of sentencing where the victim is not a minor. 26.The appellant set forth a succinct summary of facts. He then addressed each of the new grounds seriatim. Whether the court relied on the uncorroborated evidence of the complainant without adequate scrutiny 27.It was submitted that though section 124 of the Evidence Act provides for sexual offences, the court must exercise discretion cautiously and with proper justification. He relied on the case of J.W.A v Republic [2014] KECA 484, where the court of appeal [Koome, Musinga & Otieno-Odek, JJ.A] held as follows:The appellant contend that the evidence of the complainant was not corroborated. We note that the appellant was charged with a sexual offence and the proviso to Section 124 of the Evidence Act clearly states that corroboration is not mandatory. The trial court having conducted a voir dire examination of PW1 and being satisfied that the complainant was a truthful witness, we see no error of law on the part of the High Court in concurring with the findings of the trial magistrate.16.The appellant also raised the ground that crucial witnesses particularly the mother to the complainant was not called to testify. Section 143 of the Evidence Act (Chapter 80 Laws of Kenya), provides that no particular number of witnesses shall, in the absence of any provision of the law to the contrary, be required for the proof of any fact. In Julius Kalewa Mutunga -vs- Republic, Criminal Appeal No. 31 of 2005 (Unreported), this Court held that:“As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive.” 28.He submitted that the PRC indicated defilement on 17.09.2020, while testimony is on 12.10.2020 and 17.10.2020. The court did not reconcile this. He submitted that medical evidence did not indicate that the appellant infected the complainant. Whether the learned magistrate erred in law and fact by failing to consider, defence evidence and by failing to give reasons for rejecting it. 29.They blamed the trial court for not evaluating the defence evidence. Reliance was placed on the case of Okethi Okale and Others v. Republic [1965] EA 555 where the East African Court of Appeal, addressed the question of burden of proof, the standard of evidence, and a fair trial by stating that however weak a defence is, the same has to be considered. He lamented the evidence of DW2 was not considered even if it was not exculpatory. Whether the learned magistrate erred in law and fact by admitting and relying on prejudicial evidence of a prior conviction to determine the appellant’s guilt 30.It was submitted that evidence of previous conviction should not be used to determine guilt. It was submitted that the previous conviction was used at the time of sentencing. Having admitted that this was at sentencing, I shall dismiss this ground pronto. Whether the learned magistrate erred in law and fact by holding that life imprisonment is a mandatory sentence for the offence of incest under section 20(1) of the Sexual Offences Act, without considering the discretionary nature of sentencing where the victim is not a minor 31.The appellant proceeded from a premise that the complainant was an adult, and the sentence should be 10 years. If the minor is over 18, the convict is liable to life imprisonment. Reliance was placed on the cases of Opoya v Uganda and M K v Republic [2015] KECA 468 (KLR). In the latter case, the court of appeal [MK Koome, PM Mwilu, JO Odek] held as follows:14.There are two critical issues for us to consider and determine in this appeal. First is whether there is a minimum mandatory sentence of a term of life imprisonment in the proviso to Section 20 (1) of the Sexual Offences Act. Second whether the twenty (20) year term of imprisonment imposed by the trial court was illegal. We have considered the authorities cited by the appellant and it is our considered view that the authorities are not relevant to the determination of the two pertinent issues in this appeal. The appellant was charged with an offence under the Sexual Offences Act which prescribes the sentences to be meted out to persons convicted thereunder.15.Readings of the diverse provisions of the Sexual Offences Act reveal that in most sections, a minimum sentence is provided for. For example, under Section 3 (3), a person guilty of the offence of rape is liable upon conviction to imprisonment for a term which shall not be less than ten years….; Section 4 of the Act stipulates that a person convicted of attempted rape is liable upon conviction for imprisonment for a term which shall not be less than five years….. Section 5 (2) of the Act provides that a person convicted of sexual assault shall be liable to imprisonment for a term of not less than ten years…. Section 8 (3) of the Act provides that a person convicted of defilement when the child is between the ages of twelve and fifteen years shall be liable to imprisonment for a term of not less than twenty years.16.Our reading of the Sexual Offences Act shows that whenever a minimum sentence is imposed, the phrase not less than is used.17.In the instant case, the appellant was charged with an offence under Section 20 (1) of the Sexual Offences Act. This Section provides for a minimum term of 10 years imprisonment. However, the proviso to Section 20(1) stipulates that if the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life. The learned judge of the High Court interpreted this proviso to mean that a mandatory minimum sentence for life is provided for in the proviso if the female victim is under the age of eighteen years. The legal question for our consideration and determination is whether this interpretation is correct; does the proviso provide for a minimum term of life imprisonment?18.The first observation to note is that the phrase “not less than” has not been used in the proviso to Section 20 (1) of the Sexual Offences Act. The inference is that the proviso does not create a minimum sentence. The phraseology and wording in the proviso is that the accused shall be liable to imprisonment for llife19.What does “shall be liable” mean in law? The Court of Appeal for East Africa in the case of Opoya -v- Uganda (1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The Court held that in construction of penal laws, the words “shall be liable on conviction to suffer death” provide a maximum sentence only; and the courts have discretion to impose sentences of death or of imprisonment. The Court cited with approval the dicta in James -v- Young 27 Ch. D. at p.655 where North J. said:“But when the words are not ‘shall be forfeited’ but ‘shall be liable to be forfeited’ it seems to me that what was intended was not that there should be an absolute forfeiture, but a liability to forfeiture, which might or might not be enforced”.We consider such to be the correct approach to the construction of the words “shall be liable on conviction to suffer death: especially when contrasted with the words of s.184 which are “shall be sentenced to death”.20.On our part, we contrast the wordings in Section 8 (2) of the Sexual Offences Act with the proviso in Section 20 (1) of the said Act. The contrast will shed light as to whether the sentence in the proviso to Section 20 (1) is minimum and mandatory or otherwise. Section 8 (2) provides that a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. The proviso in Section 20 (1) provides that the accused shall be liable to imprisonment for life.21.Guided by the decision in Opoya -v- Uganda (1967) EA 752 and the persuasive dicta of North J. in James -v- Young 27 Ch. D. at p.655; we are satisfied that the sentence stipulated in the proviso to Section 20 (1) of the Sexual Offences Act is not a minimum mandatory sentence of life imprisonment. The proviso simply states that the trial court has discretion to mete out a maximum term of life imprisonment. Read in conjunction with the general provision in Section 20 (1) we hereby state that the correct interpretation of the proviso in Section 20 (1) is that a person convicted of incest when the female victim is under the age of eighteen years is liable to a term of imprisonment between 10 years and life imprisonment. 32.Further, he relied on several other decisions that have since been overturned. Reliance was made on Ochieng v Republic [2018] KECA 59 (KLR), where the court of appeal held as follows:This then leaves the question of the sentence. Arising from the decision in Francis Karioko Muruatetu & Another vs Republic SC Pet. No. 16 of 2015 where the Supreme Court held that the mandatory death sentence prescribed or the offence of murder by section 204 of the Penal Code was unconstitutional. The Court took the view that;“Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives that the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case. Where a Court listens to mitigating circumstances but has, nevertheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to the accused persons under the Article 25 of the Constitution; an absolute right.”31.In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis. 33.It was his position that a more lenient sentence should have been meted out. He relied on the case of Kilwake v Republic [2019] KECA 5 (KLR), where the court of appeal [ Musinga, K M'Inoti & AK Murgor, JJ] held as follows:Being so persuaded, we hold that the provisions of section 8 of the sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.40.The Sentencing Policy Guidelines require the court, in sentencing an offender to a non-custodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted, the role played by the offender in the commission of the offence and whether the offender is remorseful.41.In this case the victim, MA was 14 years old. The appellant was armed with a panga, which he did not use to injure the victim. He was alone in the commission of the offence and was a first offender. He informed the trial court that he was responsible for supporting 10 people including his wife, father and two of his brother's children. The trial court noted that he was remorseful, but felt constrained to impose upon him the sentence prescribed by the Act, which, like the first appellate court, it found to be mandatory. The defilement must have been a horrifying experience for the victim. In these circumstances, a sentence of imprisonment for 10 years would be adequate. 34.He also referred to the case of GM v Republic [2021] KEHC 9188 (KLR) where A. Ong’injo, J stated that after consideration of the appellant’s mitigation during sentencing, hearing, and appeal herein, I would find that a term of 20 years would be sufficient punishment. This was for incest where the victim was aged 9 years who to his knowledge was his stepson. He also relied on the case of PM v Republic [2019] KEHC 6467 (KLR), where R. E. Ougo J, held as follows:18.I have considered the appellant’s defense appellant and I find that it does not hold when considered alongside with the prosecution evidence. The appellant’s defense that there was a land dispute and that the elders were out to destroy his family was nothing but an afterthought. I find no contradiction in the evidence adduced by the prosecution. The appellant was given a fair trial during the proceedings.19.Under section 20 (1) of the Act the age of the complainant is not an element/or an ingredient of the offence of incest, however it must be considered when imposing the sentence. According to the age assessment report by PW4 it was established that the child was 14 years hence the sentence of life imprisonment was within law, but excessive in the circumstances. I affirm the conviction. I set aside the life imprisonment and sentence and the appellant to 10 years imprisonment on each count as convicted from the date of sentence, the 28/8/2015. The sentences to run concurrently. 35.The appellant prayed for an acquittal. In the alternative he prayed for a lesser sentence and application of section 333(2) of the Criminal Procedure Code. 36.The state filed submissions dated 6.5.2026. They set out the law applicable and the duty of the court as laid out in the case of Okeno v Republic [1972] EA 32 at 36. 37.They stated that the state proved its case beyond reasonable doubt. They relied on the case of SV v Republic [2025] KEHC 9794 (KLR), where Limo J, set out the ingredients for the offence of incest:The necessary ingredients necessary to sustain a charge of incest going by the above are as follows;a.Act of penetration or indecent act by a male person with a female person.b.Relationship of the perpetrator to the victim.c.Knowledge by perpetrator that the victim is a close relative. 38.On proof of penetration, the state proved penetration on 12.10.2020 where the appellant lured the minor into his bedroom and raped her. The complainant was threatened with a knife if she screamed. This was also the evidence of PW2, the area Assistant Chief. Further that PW3, the village elder received information of a girl who escaped due to being defiled by the father. 39.PW4 was the one who gave the minor refuge after being defiled. The appellant was looking for the daughter twice and local authorities were informed. The appellant defiled the minor and pointed out that she is of questionable character. Medical evidence showed she was suffering from UTI. The evidence of the appellant being of questionable character was not corroborated. 40.On whether there was a relationship, they submitted that the appellant was her father. This was not even contested in evidence. The appellant stated in evidence as follows:I denied having sex with the child AMW. She is my child. We are family. 41.They submitted that the offence occurred between 12.10.2020 and 17.10.2020. The PRC could not have been filled in September 2020. It was submitted that not every inconsistency results in rejection of evidence. They relied on the case of Wanyonyi v Republic [2026] KECA 281 (KLR), where the court of appeal [MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA], held as follows:In Twehangane Alfred v Uganda 2003] UGCA 6, the principle was restated that minor contradictions which do not affect the substance of the prosecution case can be disregarded. Similarly, in Joseph Maina Mwangi v Republic [2000] eKLR, this Court held that discrepancies must be fundamental to create doubt as to the guilt or otherwise of the accused. In the present case, the contradictions did not go to the root of the offence, and the concurrent findings of the two courts below that they were immaterial cannot be faulted. 42.On the consideration of the defense evidence, the appellant had relied on the questionable character of the minor. However, there was nothing to contradict the evidence of PW4 either in cross examination and or defence. I don’t find it necessary to deal with the remainder of submission on this limb as shall be seen shortly. 43.On prior conviction, they submitted that the court did not rely on the same to convict. 44.On sentence, they submitted that the sentence meted out was lawful. There was no evidence to show that the sentence was capricious. Reliance was placed on a persuasive case of Tudo v Republic [2024] KEHC 1783 (KLR), where A C Mrima, J, held as follows:This being an appeal against sentence, the Court in Wanjema v Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.9.I have considered this matter with caution and care. The trial Court was careful in the manner it conducted the sentencing proceedings. It then delivered a detailed and well-reasoned ruling. Several relevant decisions were cited. 45.The state relied on guideline number 5.1.7 for reduction or increase of sentence. This included prior conviction of an offence of similar nature. The minor was 12 years and that the appellant previously was convicted of a similar offence. He cannot benefit from the mandatory minimum sentence. This is to deter a similar offence in future. It was further submitted that in any case, had he been charged with defilement contrary to section 8(3) he was to be sentenced to a mandatory minimum sentence of 20 years. The Supreme Court has settled that the mandatory minimum sentences are no longer unconstitutional. Reliance was placed on the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), where the supreme court [MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola] held as follows:57.Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances.58.In the Muruatetu case, this court solely considered the mandatory sentence of death under section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply for example to capital offences, are vastly different from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting different sentencing for criminal offences, the drafters of the law in the Legislature, take into consideration a number of issues including deterrence of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities. 46.They submitted that the sentence meted out was lawful. Analysis 47.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 48.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [1972] EA 32 at 36, where the East Africa Court of Appeal stated the following on the duty of the court on a first appeal:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 49.The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 50.Brennan J, addressed the standard of proof required in such cases in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 51.The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:382:subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 52.Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 53.This court dealing with the instant appeal is entitled to consider the evidence in the trial court as a whole as being submitted afresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows:-1.An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.2.It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses. 54.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carry a lifelong stigma and can only be justified based on indisputable evidence. 55.There are two issues in this matter for determination. The first is whether the prosecution proved its case to the required standards. The second is whether the court ought to interfere with the sentence meted out. In the first issue, there are sub-issues, as raised in the petition of appeal, that is: inconsistencies, proof of the offence, evidence of prior conviction, and the burden and incident of proof, and the defendant’s defence. 56.The court is constrained to observe that the charge, and the submissions drafted by the accused reveal the name of the complainant. This leaves a lot to be desired. The name of the minor is set out in full instead of being anonymised. The prosecutor’s guide to children in the criminal justice system provides at 2.2.3 as follows:The prosecutor shall ensure that the name of the child, identity, home, last place of residence, school, particulars of the child’s parents and/or relatives and any other information that may disclose the identity of the child is not revealed by using initials in the charge sheet and any other public document, including statements and publications. 57.The foregoing is in line with section 94 of the Children’s Act which provides as follows:Where in any proceedings relating to an offence against or by a child, of a sexual nature, a person who, in the opinion of the Court, is under the age of eighteen years is called as a witness, the Court shall directthat such witness be protected by one or more of the following measures-(a)allowing such witness to give evidence under the protective cover of a witness protection box;(b)directing that the witness shall give evidence through an intermediary pursuant to Article 50(7) of the Constitution;(c)directing that the proceedings do not take place in open Court;(d)prohibiting the publication of the identity of the complainant or of the complainant’s family, including publication of any information that may lead to the identification of the complainant or the complainant’s family;(e)any other measure which the Court deems just and appropriate; or(f)any other safeguards provided under the Witness Protection Act, 2006 (No. 16 of 2006) or any other written law. 58.This also binds the appellant, as an accused person. The anonymising of the minor’s details cannot be gainsaid. It is irrelevant what feelings the party has towards a minor. Protection of such minor’s is absolute. There is no room for display of the name of the child where involved. 59.It is my sincere hope that this is the last time that the breach will occur. Anonymising is not optional but peremptory. Section 94 of the Children’s Act provides as follows:Where in any proceedings relating to an offence against or by a child, of a sexual nature, a person who, in the opinion of the Court, is under the age of eighteen years is called as a witness, the Court shall direct that such witness be protected by one or more of the following measures-a.allowing such witness to give evidence under the protective cover of a witness protection box;b.directing that the witness shall give evidence through an intermediary pursuant to Article 50(7) of the Constitution;c.directing that the proceedings do not take place in open Court;d.prohibiting the publication of the identity of the complainant or of the complainant’s family, including publication of any information that may lead to the identification of the complainant or the complainant’s family;e.any other measure which the Court deems just and appropriate; orf.any other safeguards provided under the Witness Protection Act (Cap. 79) or any other written law. 60.The next shocker was that the character of the victim was made subject of this litigation. A victim may even be a commercial sex worker. This does not give anyone a right to commit a sexual offence. Therefore, evidence of character and previous sexual history of the victim is irrelevant to the extent provided under section 34 of the Sexual Offences Act, which states as follows:(1)No evidence as to any previous sexual experience or conduct of any person against or in connection with whom any offence of a sexual nature is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no question regarding such sexual conduct shall be put to such person, the accused or any other witness at the proceedings pending before a court unless the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such questions.(2)Before an application for leave contemplated subsection (1) is heard, the court shall direct that any person, other than the complainant, whose presence is not necessary, may not be present at the proceedings.(3)The court shall, subject to subsection (4), grant the application referred to in subsection (1) if satisfied that such evidence or questioning-a.relates to a specific instance of sexual activity relevant to a fact in issue;b.is likely to rebut evidence previously adduced by the prosecution;c.is likely to explain the presence of semen or the source of pregnancy or disease or any injury the complainant, where it is relevant to a fact in issue;d.is not substantially outweighed by its potential prejudice to the complainant's personal dignity and right to privacy; ore.is fundamental to the accused's defence. 61.Therefore, evidence that a thousand pigs may have wallowed in the past is not admissible. The evidence of character and previous sexual history can only be admissible, if leave has been obtained under section 34(4) of the Sexual Offences Act. I cannot see such evidence and as a consequence all evidence on the victim’s character is not admissible. 62.This now enters the second phase of analysis, whether the prosecution proved its case beyond reasonable doubt. The prosecution relied on the case of SV v Republic [2025] KEHC 9794 (KLR). It sets out three ingredients of incest. Whereas I agree with the first two, the third is too wide. The necessary ingredients of defilement by a male person are:a.The perpetrator is a male personb.Commits an indecent act or an act which causes penetrationc.The victim is a female persond.To his knowledge the victim is his daughter, granddaughter, sister, mother, niece, aunt or grandmothere.The appellant is the perpetrator 63.All other relatives are excluded. However, each of the named persons, have their own subsets. A mother includes a step mother. Section 22 of the Sexual offences Act, the test of relationship, as follows:(1)In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half-father and an uncle of the first degree and a mother includes a half-mother and an aunt of the first degree whether through lawful wedlock or not.(2)In this Act—(a)"uncle" means the brother of a person's parent and "aunt" has a corresponding meaning;(b)"nephew" means the child of a person's brother or sister and "niece" has a corresponding meaning;(c)"half-brother" means a brother who shares only one parent with another;(d)"half-sister" means a sister who shares only one parent with another; and(e)"adoptive brother" means a brother who is related to another through adoption and "adoptive sister" has a corresponding meaning.(3)An accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.(4)In cases where the accused person is a person living with the complainant in the same house or is a parent or guardian of the complainant, the court may give an order removing the accused person from the house until the matter is determined and the court may also give an order classifying such a child as a child in need of care and protection and may give further orders under the Children's Act (Cap. 141). 64.Close relatives like cousins, mothers in law, wives, are not included in incest. The question of whether the victim was a daughter of the appellant was proved by the evidence of PW1, PW2, PW3, DW1 and DW2. The fact that the appellant was male was also not disputed. The medical evidence confirmed that the victim was a female person. 65.The only other issues to determine was whether:a.There was an act committed, which causes penetrationb.The appellant is the perpetrator. 66.Penetration, is defined under Section 2 of the Sexual Offences Act as follows:Penetration, means the partial or complete insertion of the genital organs of a person into the genital organs of another person; 67.The offence of incest is provided for under Section 20(1) of the Sexual Offences Act as follows:(1)Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. 68.The court cannot shift the burden of proof to an accused. The presumption of innocence remains, and the burden of proof is on the state. 69.Further in the case of Sekitoleko v Uganda (1967) EA 531 at p 533, the legendary Sir Udo Udoma C J stated as follows:As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts, whether the defence set up is an alibi or something else. That burden always rests on the prosecution. 70.The penetration must be proved to have been caused by the act of the Appellant. The most oft quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481 comes in handy in describing the legal burden of proof in criminal matters, that:Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 71.Further an accused person enters these proceedings clothed with the presumption of innocence. That presumption remains throughout the trial and can only be displaced if the prosecution proves, by the evidence adduced, beyond reasonable doubt that the accused is guilty of the offence charged. If any reasonable doubt remains, the accused is entitled to the benefit of that doubt and must be acquitted. In the case of R vs. Lifchus {1997}3 SCR 320 the Supreme court of Canada [Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter De Carteret; Mclachlin, Beverley; Lacobucci, Frank; Major, John C] explained the standard of proof as doth:39.Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these linesThe accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean? The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.40.This is not a magic incantation that needs to be repeated word for word. It is nothing more than a suggested form that would not be faulted if it were used. For example, in cases where a reverse onus provision must be considered, it would be helpful to bring to the attention of the jury either the evidence which might satisfy that onus or the absence of evidence applicable to it. Any form of instruction that complied with the applicable principles and avoided the pitfalls referred to would be satisfactory. 72.Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence of course it is possible, but not in the least probable, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth:What then amounts to reasonable doubt? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 73.So, was the appellant shown to be the perpetrator and was the minor penetrated. In other words, was there evidence of the occurrence of the offence? The appellant maintained that his defence was not considered, the evidence was inconsistent and evidence of DW2 was ignored. When considering inconsistencies, the court is guided by stare decis. The trial court must consider the magnitude of contradictions, and inconsistencies and unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6:With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 74.The court must consider whether the inconsistencies are minor or go to the core of the offence. In the case of Watu v Republic [2016] KECA 696 (KLR), the court of appeal [MS Asike-Makhandia, W Ouko & K M'Inoti, JJA] held as follows:17.The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.18.However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 75.Further in Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17, the Court of Appeal of Tanzania sitting in Mbeya, [Lubuva, Nsekela. & Mbarouk. JJ.A] addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt:In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to the root of the matter. (See: Mohamed Said Matula v Republic [1995] TLR3). The learned authors of Sarkar, The Law of Evidence 16th edition, 2007, have this to say at page 48 "Normal discrepancies in evidence are those which are due to normal errors of observation; normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do." 76.Consequently, it was the primary duty of the trial court, which must carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. In the case of Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR), the Court of Appeal [Githinji, Musinga & M’Inoti, JJ.A] held that:The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See Okeno Vs Republic (1972) EA 32).It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 77.Therefore, in my overall reevaluation of the evidence, I am unable to find any material contradictions. The PRC was said to relate to 17.10.2020. However that is not true. The PRC was filled on 02.11.2020. The incident relates to 17.10.2020. The alleged inconsistency is imaginary. There were no physical injuries but the newly broken hymen. The minor was indicated to have been born on 01.01.2008. As at 12.10.2020, she was 12 years and 9 months. This makes her 12 years. 78.For incest, it is important to note that age is irrelevant for incest. The age of the victim is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 7 or 17, then such a difference is irrelevant. Incest is complete where a male relative penetrates a female person related under section 22 as read with 20. Age is only relevant for purpose of sentencing. 79.The actual age is required only when the court is considering, sentences of purposes of the provision to Section 20(1) of the Sexual Offences Act. It provides as follows:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. 80.While addressing defilement, the Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR), addressed this aspect as follows:In the case of Kaingu Elias Kasomo V R, Malindi CR. NO. 504 OF 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence.However, as the Court clarified in Tumaini Maasai Mwanya V R, MSA CR.A. NO. 364 OF 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age. 81.At the trial, PW1 was the minor. She narrated the account of events that implicated the Appellant. The appellant was her father. The father did the penetration while the mother, DW2 was away. She testified that she used to work leaving the minor at home with a 13 year old younger brother. She testified that the complainant once came home with a boyfriend. She stated that the appellant beats the complainant when she did wrong things. She was also coming home late. 82.On the other hand, the appellant denied having sex with his daughter. He did not touch on any of the days on the charge sheet in his defence. He was giving evidence on the trails of the complainant. 83.There was no specific defence given that was disregarded. Her character is not a defence. The incident was reported to the mother who did nothing. There is no basis to allege a grudge with a daughter. The PRC was signed and produced by PW5. It showed fresh broken hymen. 84.PW4 gave cogent evidence on what transpired for the minor to be in her home. The brother had been given 5/= to buy a matchbox. The narrative was consistent and naturally flowing. She narrated the same story on cross examination and she was very consistent. The issue of previous sentence was raised in cross examination by the appellant. 85.PW3 testified how he was told of a child who had escaped. He was a teacher. He enquired and was told that the appellant defiled her 3 times and on the 4th attempt, she ran away. He informed Kibwe and told him that the girl was in that village. The mother lives in Laikipia. 86.PW2 narrated how the case came to his attention and what he learnt from the complainant. The entire evidence was consistent with penetration of the minor. The court below noted that the minor was not planning to report. It is the village elder’s report that brought the matter to light and thus, rightly ruled out frame-up. 87.The court relied on section 124 of the Evidence Act. The minor was in the children’s home hence no one was coaching her. Her story was also consistent with all the other witnesses, PW4, PW2, PW5 and PW6. On the other hand, the complainant narrated her story fully. She testified of defilement on 12.10.2020 and her age then being 13 years. She was not examined on the incident. It was on irrelevant issues that took place ex post facto. Can the state be said to have proved the case beyond reasonable doubt? Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 88.The evidence of PW1 was not impeached. It was corroborated by medical evidence. It must however be remembered that medical evidence is not necessary to prove defilement or incest in this case. 89.Further, broken hymen is not ex facie evidence of defilement. Scientific and medical evidence has proved that some girls are not even born with hymen, especially those where the hymen is broken by factors other than sexual intercourse. In the case of P.K.W v Republic [2012] KECA 103 (KLR), the court of appeal [K.H. Rawal, D.K. Maraga JJ.A, as they then were] held as follows:15.In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only ruptured by sexual intercourse?16.Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen. See the Canadian case of The Queen Vs Manual Vincent Quintanilla, 1999 ABQB 769. 90.However, the broken hymen was not the only evidence. It is the totality of the evidence. The minor’s evidence was consistence. There is no impeachment to her evidence. The court has no reasons to impeach the finding by the court below, which had the opportunity to see the witnesses. The defence evidence did not touch on defilement. In sexual offence, the evidentiary rules have been modified to better serve the interests of justice and society. In such cases, the critical issue is not the need for a warning on the dangers of relying on a single witness, but rather whether the court has recorded cogent reasons for believing the complainant’s testimony in accordance with Section 124 of the Evidence Act. 91.In the present appeal, PW1’s testimony who was 13 years while testifying and voire dire established her understanding of oathing. Her account was not doubtful and it did not require any corroboration for certainty. 92.The minor identified assailant as the father and the incidents that occurred during the day. The question of identifying the appellant was proved beyond reasonable doubt. In this case, there is no doubt that the Appellant was known to PW1 by familiarly as her father and the legal parameters were well fulfilled. Regarding penetration, as has been above observed, the minor was clear that the Appellant was the one who penetrated her on the three occasions in October 2020. 93.The court then has to deal with the issue of sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 20 of the Sexual Offences Act provides as follows:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. 94.The court then has to deal with the issue of sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 20(1) of the Sexual Offences Act provides that if the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34, where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows:11.Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed.12.Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu , which had to remain binding to all courts below.13.The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. 95.Further, the same position was reiterated by the Supreme Court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where it stated as follows:Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:94.We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.95.We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.96.We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.65.From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. 96.Secondly, the courts have also addressed the question of sentences in defilement and where persons are liable to life imprisonment. Section 26 of the Penal Code provides as follows:1.A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which the offence is punishable.2.Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term. 97.The question of liable to was addressed in the case of Republic v Jared Nyakundi Ratemo & 3 others [2016] KEHC 6000 (KLR), where W. Okwany, J posited as follows:5.To my mind and understanding of the law on sentencing, the law uses words ‘shall’ or ‘is liable’. Where the word shall is used, the discretion of the court is expressly limited by parliament as opposed to the instance where the word ‘is liable’ is employed as it denotes that the court has a discretion.6.Where parliament has restricted the discretion of the court in sentencing, the court’s hands are tied as it were and cannot go against the statute and give the words ‘shall’ a different that was not intended by the law makers. 98.Further, there is more guidance given in the Sentencing Policy Guidelines 2023 as follows:2.3.2The wording used by the Penal Code in most cases is …liable to…imprisonment or in some cases using the words not exceeding…37- thus setting out the maximum sentence in most cases. Section 26 (2) of the Penal Code gives the court discretion to impose a sentence shorter than prescribed by the relevant provision except where mandatory minimum sentences are prescribed.38Subsequent statutes such as the Sexual Offences Act provide minimum39 and maximum sentences. The Security Laws (Amendment) Act provides minimum sentences in some instances. 99.The tenor of section 20 means that the appellant, if found guilty, could be sentenced between ten years and life imprisonment with other permutations in between. The first line is that the complainant was a minor. She was born on 1.1.2008. DW2, the mother of the complaint confirmed that the minor was 12 years at the time of the incident. DW1 the appellant who was the father, confirmed the minor was 12 years. The law does not require proof of admitted facts. 100.The appellant is the father of the complainant. Facts such as age are within his knowledge in any case. Having admitted the age, he cannot turn around and indicate that she was an adult. 101.The burden of proving his daughter was an adult, a fact he asserted for purposes of more lenient sentence lay upon him. The state proved age of 12 years. Section 111 of the Evidence Act provides as follows:(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist:Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defense creates a reasonable doubt as to the guilt of the accused person in respect of that offence.(2)Nothing in this section shall-a.Prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged; orb.Impose on the prosecution the burden of proving that the circumstances or facts described in subsection (1) of this section do not exist; orc.Affect the burden placed upon an accused person to prove a defence of intoxication or insanity. 102.Consequently, the minor was below 18 years. The proviso to section 20 was in effect. The appellant was liable to life imprisonment. This means he could be sentenced to between 10 years and life. However, the court cannot sentence him to less than 20 years, to avoid creating a dichotomy of offences between section 20 and section 8 of the Sexual Offences Act. The court found that the appellant had a previous sentence. 103.Consequently, the complainant was a minor below the age of 18 years. At the material time, the proviso to section 20 was applicable. The appellant was therefore liable to a sentence of life imprisonment. In effect, the sentencing court had discretion to impose a sentence ranging from a term of years to life imprisonment. However, the sentence ought not to be less than 20 years so as to avoid creating an inconsistency in the punishment prescribed for offences under section 20 vis-à-vis those under section 8 of the Sexual Offences Act. Further, the trial court noted that the appellant was a repeat offender, having previously been convicted and sentenced for a similar offence. 104.The appellant admitted that he had a previous conviction for a sexual offence, that is, attempted defilement. Although he sought to explain the circumstances leading to that conviction by alleging that he had himself been framed, the fact remains that he was duly convicted by a court of competent jurisdiction. The trial court herein was not sitting on appeal against that conviction, nor is this Court. Consequently, the previous conviction remains valid and constitutes proof that the appellant had a prior conviction for a sexual offence. 105.The most hilarious part is the sentencing. The same is like no other. The appellant mitigated as follows:I have not done any wrong. I have suffered long in custody and I only thank God for here I am. 106.The prosecutor submitted as follows:The court in convicting the appellant made a short ruling which I set out herein verbatim: The accused person has a previous conviction where he attempted to defile his niece. He then went ahead to defile his daughter. That shows he is totally inhuman and a danger to society. 107.The court meted out the following sentence:Sentence the accused person is committed to prison for the remaining of his life. 108.First, it is not clear which sentence was being meted out. Secondly, there was no consideration of which possible sentences could be meted out. Mitigation was not considered, nor aggravating factors. It is not clear whether the court believed the existence of the previous sentence. It is also not clear whether the question of previous sentence was being addressed by the prosecutor or the court. This is because there is no mention of defilement of a niece by the parties. 109.First, it is not clear from the record which sentence the trial court ultimately intended to impose. “Committed to prison for the remaining of his life” is not a sentence provided under law. Section 24 of the penal code provides as follows:The following punishments may be inflicted by a court-a.death;b.imprisonment or, where the court so determines under the Community Service Orders Act (Cap. 93), community service under a community service order;c.detention under the Detention Camps Act;d.…e.fine;f.forfeiture;g.payment of compensation;h.finding security to keep the peace and be of good behaviour;i.any other punishment provided by this Code or by any other Act. 110.Committal to prison is not one of the sentences that are meted out. If the court intended as it appears to mete out life sentence, then it should say so. Secondly, there is no indication that the court considered the range of sentences available in law before arriving at its decision. The sentences are available on the basis of age, that is, above 18 years, imprisonment for not less than 10 years. Where the female victim is below 18 years, the offender is liable to life imprisonment. The court needed to discuss the sentence and give raison d'être for the decision. Convict whose mitigation circumstances cannot be taken into account cannot be said to have been accorded a fair hearing in sentencing. 111.In the case of Kilwake v Republic [2019] KECA 5 (KLR), the court of appeal [DK Musinga, K M'Inoti & AK Murgor, JJ.A] addressed the importance of mitigation as follows:The Sentencing Policy Guidelines require the court, in sentencing an offender to a non-custodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted, the role played by the offender in the commission of the offence and whether the offender is remorseful.41.In this case the victim, MA was 14 years old. The appellant was armed with a panga, which he did not use to injure the victim. He was alone in the commission of the offence and was a first offender. He informed the trial court that he was responsible for supporting 10 people including his wife, father and two of his brother's children. The trial court noted that he was remorseful, but felt constrained to impose upon him the sentence prescribed by the Act, which, like the first appellate court, it found to be mandatory. The defilement must have been a horrifying experience for the victim. In these circumstances, a sentence of imprisonment for 10 years would be adequate. 112.The appellant has a whole life in front of him in prison. There was no need of hurrying him. A pre-sentence report is usually advisable so as to deal with all mitigating factors. Parliament has already dealt with the humanity or otherwise of a person guilty of incest. It however provides for a moving scale of sentences. It is important that the trial court go in depth to enable this court and any court subsequently to it to understand the basis. 113.The record does not demonstrate that the appellant's mitigation was taken into account, nor does it disclose any consideration of the aggravating and mitigating factors relevant to sentencing. 114.The question of mitigation was addressed in the case of Henry Katap Kipkeu v Republic [2009] KECA 294 (KLR), where the court of appeal [E.O. O’Kubasu, P.N. Waki and Alnashir Visram] posited as follows:Before we conclude this judgment, we must say something about the manner the learned Judge dealt with the sentence. We note that the learned Judge sentenced the appellant to death in his main judgment without recording mitigating factors, if any. This was not proper. As we have stated previously, after the judgment is read out and in case of a conviction, the court must taken down mitigating circumstances from the accused person before sentencing him/her. This obtains even in the cases where death penalty is mandatory and the reasons for this requirement are clear. Some of the reasons are first that when the matter goes to appeal as this matter has now come before us, there are chances that the appellate Court may reduce the offence to a lesser charge such as that of manslaughter, grievous harm or assault. In such circumstances, mitigating factors would become relevant in assessing the sentence to be awarded. Secondly, even if the matter does not come to this Court on appeal or if it comes to this Court and the appeal is dismissed, such mitigating factors would still be required when the matter is placed before another body for consideration of clemency. Thirdly, matters such as age, pregnancy in cases of women convicts, may well affect the sentence. It is thus necessary that mitigating factors be recorded even in capital offences.In John Muoki Mbatha V. R. – Criminal Appeal No. 72 Of 2007 (unreported) this Court stated:“As we have stated over and over again when considering sentences in respect of murder cases, the sentences should be reserved and pronounced only after mitigating factors are known. This is important because, in mitigation, matters such as age, and pregnancy in cases of women convicts, may affect the sentence even in cases where death sentence is mandatory. In our view, no sentence should be made part of the main judgment. Sentencing should be reserved and be pronounced only after the Court receives mitigating circumstances if any are offered.” 115.Further, it is unclear whether the trial court accepted the existence of a previous conviction and, if so, the extent to which that factor influenced the sentence imposed. Equally unclear is whether the issue of the previous conviction was being addressed by the prosecutor or by the court itself. The ambiguity is compounded by the fact that the record contains no reference by either party to the alleged defilement of a niece, notwithstanding that the matter appears to have featured in the sentencing discourse. In the circumstances, the sentencing process lacks the clarity and transparency necessary to enable this Court to ascertain the basis upon which the sentence was arrived at. 116.It is important to call the presentence report. This helps to take into account both mitigating and aggravating factors. Further it is important to take into account, if possible, the victim impact statement. Section 12 of the Victim Protection Act provides as follows regarding Victim impact statements:1.A victim of a criminal offence may make a victim impact statement to the court sentencing the person convicted of the offence, in accordance with section 329C of the Criminal Procedure Code (Cap. 75) and that statement may be considered by the court in determining the sentence of the offender.2.If a victim expresses a wish to make a victim impact statement, a prosecuting agency shall refer the victim to an appropriate victims' services agency for assistance in preparing the victim impact statement.3.A victim has a right to present a victim impact statement in all cases where the court is to consider victim protection and welfare.4.The statement referred to under subsection (1) shall include information on the impact of the offence on the victim's life and any concerns the victim may have about their safety. 117.It must be recalled that a victim has a right to present a victim impact statement in all cases where the court is to consider victim protection and welfare. 118.It must be recalled that a victim has a right to present a Victim Impact Statement in all cases where the court is required to consider the protection, welfare, and interests of the victim. Such a statement serves to inform the court of the physical, psychological, emotional, social, and economic effects of the offence on the victim and may constitute a relevant factor in the sentencing process. However, for the statement to be relied upon, it must form part of the record and be disclosed to the parties. In the absence of a properly recorded Victim Impact Statement, the sentencing court cannot be assumed to have taken into account matters relating to victim welfare that are not apparent from the proceedings. 119.I note from the mitigation, the appellant maintained his innocence and did not offer mitigation. He did not express remorse for the actions done. However, he had a previous conviction. Therefore, a minimum sentence does not fit the appellant who has a previous conviction. The proceedings showed that the minor ran away from home fearing for her safety. The sentence provided is that the convict is liable to life imprisonment. The life imprisonment for defilement is not mandatory for incest. However, the court must keep a keen eye on protection of children. 120.Therefore, a deterrent sentence is necessary. The minor was 12 years old. Her life is shuttered forever. She requires psychosocial support. She is now living in a children home, when her own home became unlivable. This has maximum harm. The appellant was a parent and thus under duty to protect the minor. The defilement was in breach of trust and this made a home to be hostile to the minor. It does not matter that the mother was the appellant’s witness. The harm was irreparable. 121.However, no social inquiry report was prepared or presented to the court. Such a report would have assisted in contextualizing and evaluating the circumstances of the complainant, the psychosocial effects of the offence, the victim's vulnerabilities, and the broader impact of the crime on the victim's welfare and development. It would also have provided the court with a more holistic understanding of the factors bearing on sentencing. In its absence, the court lacked an important tool for assessing the full extent of the harm suffered by the minor and for fashioning a sentence that adequately reflected both the interests of the victim and the objectives of sentencing. It does not however take away the discretion of the court. 122.Given that the sentence meted by the court below was in absence of explanation and context, it is excessive and harsh. The court of appeal in addressing a similar question of sentence in the case of Gona & 2 others v Republic (Criminal Appeal E026, E027 & E028 of 2023 (Consolidated)) [2026] KECA 518 (KLR), stated as follows:However, pursuant to the Supreme Court case of Francis Karioko Muruatetu & Another vs Republic (supra), this Court has the discretion to substitute the death sentence with a custodial sentence taking into account the evidence, the accused’s mitigations and other related materials. In the case of Otieno vs Republic [2025] KECA 1634 (KLR), this Court held that:“In relation to the death sentence, the Supreme Court decision in the Francis Karioko Muruatetu case did not outlaw it, rather, it declared the mandatory nature of the death sentence unconstitutional as it impedes judicial discretion in the determination of sentences. However, it does not prohibit, deter or limit the imposition of the sentence in deserving cases.The Supreme Court took the view, further, that the trial court should take into account the circumstances of the offender and the offence in meting out the sentence.”When the evidence against the Appellants together with their mitigation is weighed out against the brutal, inhuman and premeditated manner in which they murdered the deceased, and the fact of the wanton loss of his life has caused to his family, more particularly his wives and 6 young children, as well as the community at large are considered, the circumstances of this case warrant that the death sentence be substituted with a stiff sentence of forty (40) years imprisonment, which, we are of the view would be more appropriate. 123.In the same vein a stiff penalty is required for such offences. However, the same did not reach maximum culpability. Therefore, a sentence of 30 years imprisonment will suffice. 124.Nevertheless, the court notes that the court was silent on the commencement date of the sentence since it was a life sentence. The court is obligated to take into account days in custody. Section 333(2) of the Criminal Procedure Code provides as follows:Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 125.The appellant was arrested on 19.11.2020. He remained in custody until his conviction. Therefore, the 30 years should start on 19.11.2020, the day of arrest, less any period he may have been on bond, if any. Disposition 126.Drawing from the above discussion, it is apparent that the appeal partly succeeds. In the end, the following orders do hereby issue:a.The appeal on conviction fails and is hereby dismissed.b.The appeal on sentence is allowed. The life sentence is set aside and substituted with 30 years’ imprisonment commencing from 19.11.2020, the date of arrest.c.Right of appeal 14 days.d.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI THIS 23RD DAY OF JULY, THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Kihara for the StatePro se Appellant presentCourt Assistant – Timothy